Republicans subpoena residency records in Senate case

FONDA — A judge said he was “inclined” to hear the meat of mostly Republican-brought challenges to absentee and affidavit ballots that will be the deciding factor in the 46th State Senate Disrict and, by extension, determine which party controls the state’s upper chamber.

Acting Montgomery County Supreme Court Justice Guy Tomlinson offered the tip of his hand after listening to attorneys for two candidates — Republican Assemblyman George Amedore and Duanesburg Democrat Cecilia Tkaczyk — argue for three hours about the best method for counting 887 legally disputed ballots in the race.

Amedore leads Tkaczyk by 111 votes, but the Republican’s attorneys lodged the initial objections to over 3/4 of those disputed ballots. It’s thought that opening the ballots will favor Tkaczyk.

Republicans won a first victory, though, when Tomlinson said he would consider objections to the applications for absentee ballots, based on information voters may have left off — like the reason they were requesting the ballot, or their full address — as well as questions of the legitimacy of their voting residency. Democrats had argued that these matters were not open for discussion, because a bipartisan team of county elections officials already reviewed the applications and decided to issue an absentee ballot.

“An individual may have a dual residence, but not necessarily a dual residence for voting purposes,” said Amedore’s attorney David Lewis.

He indicated the campaign was gathering evidence for such challenges, which could be lengthy. On Friday, after Lewis paid him a visit at home, Tomlinson signed subpoenas for business, utility and voting records from Verizon, Time Warner Cable, the New York Department of Taxation and Finance, New York City Board of Elections, NYSEG as well as the state’s Department of Motor Vehicles. The campaign has also hired private investigator to examine where voters actually live.

Lewis also argued that missing portions of applications should be construed as reason to discard a ballot, because the information required to get a ballot has been pared over the years.

Tkaczyk’s attorney, Frank Hoare, had said the court should take a broad view of what votes are permissible. After a scheduling hearing last week, Hoare said his client would be victorious if all the disputed votes were counted.

“Our position, very simply is we should be opening envelopes and counting ballots,” he said. “The law has evolved to say we want to encourage voting.”

The candidates’ attorneys also argued about the best process for examining any ballots Tomlinson rules are valid. Hoare said they should be opened and counted, with their attached documentation preserved, as the judge made decisions. Lewis said they should be set aside, unopened, until every avenue of (probable) legal appeal had been exhausted. This would protect the privacy of voters, he said.

“It opens the door to gamesmanship,” he said, while opening ballots proves “less productive and more problematic to the public, who thinks there’s a resolution when there’s not.”

Hoare repeated the Democratic contention that the Republicans were purposefully delaying — perhaps to prevent a winner from being seated and to allow Republicans, who now control 31 votes in the chamber compared to 30 by Democrats, to elect a Senate leader in January before every senator is seated.

“There’s not an issue of privacy of voters, there’s an issue of delay,” said Hoare.

Tomlinson did not immediately settle on an overall counting procedure for the five-county district, which stretches from Amsterdam to Kingston through Schenectady, Albany and Greene counties. But citing outstanding judicial races in Schenectady and Montgomery counties, Tomlinson cajoled both sides to agree to consider and open ballots there — a fraction of the total disputed in the Senate district — starting tomorrow.

The attorneys adjourned around 12:30 p.m. to eat lunch and draft such an order, which Tomlinson indicated he would adopt later this afternoon.